United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge
Rafael Diaz (“Petitioner”) is an inmate at the
Danville Correctional Center in the custody of Warden Victor
Calloway (“Respondent”). Petitioner is serving a
12-year sentence for a conviction of aggravated criminal
sexual assault. Before the Court is Petitioner's
application for a writ of habeas corpus under 28 U.S.C.
§ 2254 in which he argues that his state conviction and
sentence should be vacated because (1) he was denied
effective assistance of counsel when his trial counsel failed
to request a jury instruction of battery as a lesser included
offense of aggravated criminal sexual assault, and (2) he was
denied his right to due process when the trial court failed
to instruct the jury on the use of prior inconsistent
statements as substantive evidence (paragraph two of Illinois
Pattern Instruction (“IPI”) 3.11). See . For
the reasons set forth below, the Court denies Plaintiff's
petition , declines to certify any issue for appeal
pursuant to 28 U.S.C. § 2253(c)(2), and directs the
Clerk to enter judgment in favor of Respondent.
was charged with aggravated criminal sexual assault and home
invasion in Cook County, Illinois. He elected to be tried by
May 2012 trial, the victim, R.A.E., testified that she
returned home from work on August 31, 2008 to the trailer
that she shared with her husband, her five year old son, and
her brothers Antonio and Isidro. R.A.E. testified that Isidro
was alone on the porch when she arrived home and was not
drinking, but on cross-examination R.A.E. admitted that she
told police following the incident that Isidro had been
drinking. R.A.E. testified that upon arriving home she
entered the trailer, showered, and went to sleep in her
bedroom next to her son.
testified further that she awoke to find a man who she
identified as Petitioner on top of her with his fingers in
her vagina. When R.A.E. defended herself, Petitioner hit her,
pulled her hair, and called her a “fucking
bitch.” [6-11] at 249. He then threw her off the bed
onto the floor and continued to strike and kick her.
Id. R.A.E. testified that she screamed for help,
which caused her brother Antonio to enter the room. On
cross-examination, defense counsel presented R.A.E. with a
police report that recorded that she told police that Isidro
had come into her room, struggled with Petitioner, and chased
him out of her bedroom. R.A.E. testified that she did not
recall whether she told officers this.
further testified that, after speaking to police officers,
she was taken to the hospital and examined and interviewed by
nurse Nancy Healy. Nurse Healy testified at trial. According
to Nurse Healy, R.A.E. (with the help of a Spanish
translator) told her that Petitioner put four fingers in her
vagina and she experienced vaginal pain during the incident.
[6-12] at 43. R.A.E. had bruising and swelling around her
eyes, forehead and mouth and visible injuries to her
shoulder, arm and back. Id. at 42, 49-50. Nurse
Healy testified that she performed a vaginal examination and
administered a sexual assault kit, but did not observe any
injuries to R.A.E.'s vagina, pelvis, or abdomen.
brother Antonio testified at trial that on the night of
October 31, 2008, he picked up R.A.E.'s son after work
and upon arriving home saw Isidro on the porch. Antonio
testified that Isidro was not drinking. He further testified
that R.A.E. came home from work around midnight and went into
her room. Antonio fell asleep on the couch and was awakened
around 4:00 a.m. by Petitioner entering the trailer and
locking the door behind him. Petitioner asked for directions
to the bathroom and Antonio pointed him to the back of the
trailer. About five minutes later, Antonio heard his sister
screaming so went to her room. He opened the door and saw
Petitioner on the floor with R.A.E., holding her by the hair
and hitting her in the face. Antonio ran for help. Isidro
tried to open the trailer door when he heard R.A.E.
screaming, but the door would not open.
trial, Officer Robitz testified that when he found Petitioner
following the incident, he had scratches on his face.
also testified at his trial. According to Petitioner, on the
night of August 31, 2008, he went to a trailer park to visit
friends. He drank more than a case of beer over the course of
the evening. Around 1:30 a.m., he encountered Isidro and
Isidro invited him over to his trailer for more drinks.
Isidro and Petitioner got into an argument over whether
Petitioner took Isidro's wallet, and Isidro threatened
Petitioner with a stick. Isidro soon discovered he was
mistaken, and apologized to Petitioner. According to
Petitioner, he then asked Isidro if he could use the bathroom
and Isidro told him to go inside. Isidro entered the trailer
and saw a young man in the couch, who he asked for directions
to the bathroom. The man pointed to the back of the trailer
and Petitioner walked down the hall. Petitioner looked into
one room, which contained a bed.
opened the door to a second room, turned on the light, and
saw a person. He turned off the light, closed the door, and
opened the door to a third room, which was the bathroom.
After using the bathroom, he went into the hall, where he saw
a shadow. According to Petitioner, someone jumped out and
attacked him, scratched his face, and kicked and kneed him.
Petitioner hit his alleged attacker (R.A.E) and she fell to
the floor. R.A.E. yelled, “what are you doing in my
house?, ” but Petitioner did not say that Isidro had
let him use the bathroom. Instead, according to Petitioner,
he hit R.A.E several time, causing her injuries that were
depicted in photo exhibits presented at trial. According to
Petitioner, the struggle lasted ten to thirty seconds, and
then he fled.
to closing arguments, the court held a jury instruction
conference with counsel. Petitioner's trial counsel did
not request an instruction for battery as a lesser-included
offense of aggravated criminal sexual assault. See [6-13] at
jury instruction conference, Petitioner's counsel
proffered the full IPI 3.11 pertaining to prior inconsistent
statements. [6-13] at 20-21. The full pattern instruction
contains language indicating that jurors can consider some
inconsistent statements-which would otherwise be inadmissible
hearsay-as substantive evidence. Specifically, it states in
The believability of a witness may be challenged by evidence
that on some former occasion he made a statement that was not
consistent with his testimony in this case. Evidence of this
kind ordinarily may be considered by you only for the limited
purpose of deciding the weight to be given the testimony you
heard from the witness in this courtroom.
However, you may consider a witness's earlier
inconsistent statement as evidence without this ...